EU Recognition of a Palestinian State with Jerusalem as its Capital

by Oded Eran The declaration by EU heads of state on December 8, 2009 about the political process in the Middle East is no cause for anxiety. However, neither should it be dismissed lightly, and we would do well to examine its long term implications.

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In the second half of 2009, during its term as president of the EU, Sweden attempted to institute a sweeping change in EU policy towards the Arab-Israeli conflict. The primary change it sought was EU recognition of a Palestinian state within the 1967 borders with East Jerusalem as its capital. The final text adopted by the EU member states is far from Sweden's initial draft proposal. A comparison of the two texts, however, is instructive regarding some of the prevailing attitudes in the EU and the limitations of certain EU member countries in formulating position-based policies. However, the final version also reveals an erosion of support by many nations towards Israel. The Israeli government ought not to ignore this change or the reasons behind it. The key sentence of the December 8, 2009 declaration states that the European Council reiterates its support for negotiations leading to Palestinian statehood and steps to that end. Furthermore, the European Council expresses its readiness to recognize a Palestinian state “when appropriate.” Noting that it has never recognized Israel's annexation of East Jerusalem, the Council determines that negotiations must resolve the status of Jerusalem as the future capital of two states. This formulation denotes that according to the EU, the road to the establishment of a Palestinian state is through negotiations. By adding the reference to East Jerusalem and the withholding of recognition of Israel’s annexation, the EU has designated that part of the city as the capital of the Palestinian state. The European Council has thus not committed itself to recognizing a Palestinian state, but it is not clear whether its reluctance to affirm recognition unequivocally refers to Palestinian statehood after negotiations or to a unilateral Palestinian declaration. Because recognition of new nations remains under the exclusive authority of each EU member nation, one may assume that not all EU member nations would recognize a Palestinian state should it be declared unilaterally, rather than as the result of negotiations between Israel and the Palestinians. A collective act of the EU would take place as stated in the EU declaration “when appropriate.” A hint as to what “when appropriate” means, or at least the Swedish interpretation of the phrase, may lie in the paragraph in which EU heads of state express support for the plan of Palestinian prime minister Salam Fayyad to build the institutions of the Palestinian state-in-the-making. According to Fayyad, construction of the institutions is supposed to take place over the next two years. The European conditioning of Palestinian statehood on negotiations, loose as it may be, is somewhat reminiscent of President Bush’s letter to Prime Minister Sharon in April 2004, which stated that changes in the 1967 borders, so as to include the Jewish settlement blocs within the State of Israel, would be subject to negotiations. Just as Israel viewed the expression of America’s position as a political achievement, the Palestinians may also view the European position, toned down as it may be, as a political achievement of their own. Worthy of attention in this context is the March 24-25, 1999 announcement by the heads of the EU more than 10 years ago at the end of their discussions in Berlin. The idea of European recognition of a Palestinian state was raised then as well, and the EU affirmed the right of the Palestinians to a state and called on the parties to conduct negotiations "without prejudice to this right, which is not subject to any veto." The Berlin European Council’s Presidency Conclusions continue: The European Union is convinced that the creation of a democratic, viable and peaceful sovereign Palestinian State on the basis of existing agreements and through negotiations would be the best guarantee of Israel's security and Israel's acceptance as an equal partner in the region. The European Union declares its readiness to consider the recognition of a Palestinian State in due course in accordance with the basic principles referred to above. A comparison of the 1999 Berlin document and the 2009 Brussels document demonstrates that the major change in the position of the EU relates to the status of Jerusalem and its future as the capital of two states. EU heads have expressed their opposition to Israeli steps in Jerusalem in the past. On the other hand, this is the first time that the EU officially expressed its support for the idea that the capital of the Palestinian state is in Jerusalem. Those seeking solace in the European declaration will find it in the EU’s recognition that Israel too has the right for its capital to be in Jerusalem. The declaration of December 8, 2009, contains other points of interest. The relatively positive reference to the Israeli government’s decision to freeze construction in the Jewish settlements partially and temporarily concludes with the statement that the Council “hopes that it will contribute towards a resumption of meaningful negotiations.” Because the declaration contains additional demands of Israel, but the resumption of negotiations is directly linked only to the freeze, one may view this as a certain support for the demand made by the United States and Israel that the Palestinians resume the negotiations as a result of the freeze. In order to remove any doubt regarding its basic positions, the EU continues to demand an immediate end to construction in East Jerusalem “and the rest of the West Bank” (i.e., in the eyes of the heads of the EU, East Jerusalem is part of the West Bank). Furthermore, they demand the removal of all illegal outposts constructed since March 2001. The EU took no pains to hide its support for Abu Mazen and called on the Palestinians to stand behind him. The EU would welcome internal elections “when conditions permit,” i.e., the EU accepted Abu Mazen’s continued term in office even in the absence of elections. For now, a serious crisis in the EU’s position with regard to Israel has been avoided. The low in Israeli-Swedish relations has gone even lower, but this is hardly a new phenomenon. Within two years, and barring any significant progress in the negotiations between Israel and the Palestinians (or, alternately, in the negotiations between Israel and Syria), the differences of opinion between Israel and the EU as a whole are liable to grow more pointed, and this may be expressed in various practical aspects of the bilateral relations. However, most of all it is important to remember that the EU is a kind of bellwether. In its 1980 Venice declaration, thirteen years before Israel and the PLO opened direct negotiations, the EU declared that it was recognizing the Palestinian right to self-determination. Even before Ehud Barak was elected prime minister in 1999 and negotiations about the permanent settlement were resumed at the end of that year, the EU had already come out with its Berlin declaration about the possible recognition of a Palestinian state. By contrast, the American president declared a need for a two state solution only in 2002. In 2009, the EU has suddenly declared Jerusalem to be the capital of both states. The precedents must surely worry all who are opposed to any compromise whatsoever in Jerusalem.